If I am an accused person and choose to give evidence, what will I face?

For an accused person, the moment the court calls for the defence is one of the most important in a criminal trial. You will have to decide whether to give evidence and, if so, how. This guide explains the options under Malaysian law and what giving evidence involves. It is general information, not advice on your case, and nothing here suggests giving anything other than truthful evidence.

When does the accused decide?

At the close of the prosecution case, the court decides whether the prosecution has made out a prima facie case. If not, the accused is acquitted. If it has, the court calls on the accused to enter on their defence. See what happens after being charged for the earlier stages.

What are the three options?

Under section 173(ha) of the Criminal Procedure Code, when the court calls on the accused to enter on the defence, it must read and explain three options:

1. Give sworn evidence in the witness box. You take the oath or affirmation, give your evidence, and are cross-examined by the prosecution.
2. Give an unsworn statement from the dock. You make a statement without taking the oath, and you are not cross-examined. Courts generally treat an unsworn statement as carrying less weight than sworn evidence, though it must still be considered.
3. Remain silent. You do not give evidence. If the prosecution has made out a prima facie case, the court may convict on that evidence if it is not rebutted.

Whichever option you choose, the defence may still call other witnesses. The choice is yours, made after advice from your lawyer.

Have a question about your own situation? Ask on WhatsApp

What happens if I give sworn evidence?

Examination-in-chief

Your own lawyer asks you questions, usually open questions, so you can give your account. In criminal trials, evidence-in-chief is generally given orally.

Cross-examination by the prosecution

The deputy public prosecutor will test your evidence. Under the Evidence Act 1950, leading questions are allowed in cross-examination (section 143), and questions may test your credibility (section 146). Expect to be asked about inconsistencies with earlier statements, documents and other witnesses' evidence. See cross-examination vs examination-in-chief.

Re-examination

Your lawyer may ask further questions to explain matters raised in cross-examination.

The judge's questions

The judge may ask questions at any time (section 165).

How should I prepare?

1. Discuss the three options thoroughly with your lawyer, including the risks of each in your case.
2. Understand the procedure: where you will stand, how long it may take, how cross-examination works.
3. Re-read documents relevant to your evidence that your lawyer gives you.
4. Arrange an interpreter if you need one; see giving evidence in Chinese or Malay.
5. Remember: your lawyer may explain the process and the issues, but may not tell you what facts to say. Your evidence must be true.

Common mistakes

• Deciding at the last minute without proper discussion with your lawyer.
• Arguing with the prosecutor instead of answering.
• Guessing at details you do not remember.
• Changing your account under pressure without explanation.
• Assuming silence has no consequence. It may, if the prosecution evidence stands unrebutted.

Who has to prove what during the defence?

Calling for the defence does not mean the accused must now prove innocence. At the end of the whole trial, the court considers all the evidence and decides whether the prosecution has proved its case beyond reasonable doubt, as the Criminal Procedure Code requires. In general terms, the defence aims to raise a reasonable doubt on the prosecution's case, unless a particular law places a specific burden on the accused. How this applies to your charge is something to discuss in detail with your lawyer before you choose an option.

When to speak to a lawyer

If you have been charged, speak to a criminal defence lawyer as early as possible, well before the defence is called. The choice between the three options is a significant decision that depends on the evidence in your case. Contact us; every case depends on its facts.

Frequently asked questions

Do I have to give evidence?

No. The choice is yours. The court will explain the options and the consequences.

Can I change my mind after choosing?

Discuss this with your lawyer immediately; it depends on the stage and the court's view.

Will my police statement be used against me?

The rules on statements by accused persons are technical. Ask your lawyer how they apply in your case.

How long will cross-examination last?

It varies from less than an hour to several days.

Can I call witnesses if I stay silent?

Generally yes. The defence may call other witnesses whatever option the accused chooses.

Sources & fact check

Legal points in this article were checked against the primary sources below. The law can change; this is general information, not legal advice.

1. Criminal Procedure Code (Act 593), including sections 112, 173 and 257, AGC Laws of Malaysia
2. Evidence Act 1950 (Act 56), Part III Chapter X: examination of witnesses (ss.137-166), AGC Laws of Malaysia
3. Penal Code (Act 574), Attorney General's Chambers Laws of Malaysia
4. Office of the Chief Registrar, Federal Court of Malaysia (Judiciary portal)

Fact-checked on 17 Oct 2026